How Not to Misunderstand Scalia

July 2 (Bloomberg) -- Supreme Court Justice Antonin Scalia
may be the most polarizing figure in all of American law.
Conservatives tend to see him as an icon who is faithful to the
Constitution, unfailingly clearheaded and outraged when the
occasion calls for it. Liberals tend to see him as an ogre who
is on the wrong side of history, unbecomingly strident and
hypocritical to boot.

Last week, liberals asked a pointed question: How can
Scalia have the temerity to express constitutional doubts about
affirmative-action programs on Monday and to vote to invalidate
the Voting Rights Act on Tuesday -- and then piously argue on
Wednesday that the Supreme Court should defer to Congress and
uphold the Defense of Marriage Act?

It’s a legitimate question, and whether or not it has a
good answer, Scalia remains poorly understood by his admirers
and his critics alike. Perhaps his central goal has been to
promote the rule of law, which (as he contended in an important
essay in 1989) is “a law of rules.” He seeks to increase
predictability and to reduce the risks associated with judicial
discretion. He favors general rules, not case-by-case judgments.

In his view, such rules simplify life for ordinary people
and the legal system as a whole. They also reduce the danger
that political preferences will end up dominating judicial
decisions.

Because of his commitment to predictability and democratic
self-government, Scalia insists that laws must be interpreted in
accordance with their ordinary public meaning -- the meaning
that their words had in the nation or community that enacted
them.

Ambiguous Words

Of course, Scalia is aware that words can be ambiguous; in
such cases, he is willing to defer to the interpretation of the
executive branch (whether the president is a Democrat or a
Republican). What he insists on is that the ordinary meaning
governs if judges can identify it.

That commitment isn’t connected with any political
ideology; it can lead to liberal results. For example, Scalia
recently wrote an important voting-rights opinion (over vigorous
dissents from Justices Clarence Thomas and Samuel Alito), ruling
that the language of the National Voter Registration Act bans
Arizona from requiring voters to provide documentary evidence of
U.S. citizenship.

As an “originalist,” Scalia believes that provisions of the
Constitution mean what they meant at the time that they were
ratified. He thinks that originalism increases predictability
and ensures the sovereignty of We the People. The meaning of
constitutional provisions is a question of history, not
morality.

With respect to the Defense of Marriage Act, originalism
(as Scalia understands it) leads to a clear conclusion: Congress
may refuse to recognize same-sex marriages. In his words, “the
Constitution neither requires nor forbids our society to approve
of same-sex marriage, much as it neither requires nor forbids us
to approve of no-fault divorce, polygamy, or the consumption of
alcohol.”

Is this position incompatible with his conclusion that
affirmative-action programs violate the Equal Protection Clause?
Maybe not. In his view, the constitutional requirement of “equal
protection,” understood in accordance with its original public
meaning, forbids any and all forms of racial discrimination.

Chief Justice John Roberts wrote the court’s Voting Rights
Act opinion, but Scalia probably believes something like this:
If the 15th Amendment is to be interpreted in accordance with
its original meaning, Congress’s power to enforce that amendment
“by appropriate legislation” doesn’t allow lawmakers to continue
to use an outdated preclearance formula that covers states on
the basis of practices that were eradicated long ago.

Originalism Objections

None of these points means that Scalia is correct in his
general approach or in his particular conclusions. There are
formidable objections to originalism, which is hard to square
with some widely accepted constitutional practices (including
the prohibition on racial discrimination by the federal
government and on sex discrimination in general).

Affirmative action may well be consistent with the original
understanding of the 14th Amendment. It remains puzzling that
Scalia has yet to discuss the historical materials, which create
serious problems for his insistence on colorblindness.

By all accounts, Scalia is a wonderful colleague, but some
of his opinions test the boundaries of civility. One of the most
vivid writers in the court’s history, he knows how to deliver a
punch. Sometimes he seems to think that people who don’t see
things his way aren’t merely in error but are also foolish,
unacceptably political, even lawless.

Those who disagree with Scalia are entitled to object to
his votes and his tone. At the same time, they should understand
that his broadest commitment is to the rule of law. They should
honor that commitment, and they should respect his efforts to
develop an approach to interpretation that is compatible with
it.

(Cass R. Sunstein, the Robert Walmsley University
Professor at Harvard Law School, is a Bloomberg View columnist.
He is the former administrator of the White House Office of
Information and Regulatory Affairs, the co-author of “Nudge” and
author of “Simpler: The Future of Government.”)